THE AEGEAN DISPUTES. Introduction. Yüksel İnan -Yücel Acer

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1 THE AEGEAN DISPUTES Yüksel İnan -Yücel Acer Introduction The Aegean Sea is a semi-enclosed sea, which is unique not only because of its coastlines are mostly intended but also a place for about 1800 islands, islets and rocks scattered all around the sea. 1 Despite the fact that they are dispersed all around the Aegean Sea, they still lie closer to each other in certain places and can thus be grouped according to their location as the North Sporades, the Cyclades, the Strait Region Islands, the Saruhan Islands and the Menteşe (Dodacanese) Islands. Moreover, the last three groups of islands can be taken together and named as the Eastern Aegean Islands which all lie closer to the shores of Anatolia rather than to the coasts of the Greek mainland. In addition, excluding the Menteşe Islands, the Strait Region and Saruhan Islands both lie on the natural prolongation of Anatolia. Moreover, the location of those islands within the Aegean Sea is such that their actual and possible maritime areas have a potential to decrease the areas that constitute the high seas of the Aegean Sea. Thus, they have a direct effect on the considerations related to the free navigation, over flight, and the security matters in the Aegean Sea. Dr. Yüksel İnan is a Professor of International Law at the Department of International Relations, Bilkent University, Ankara. Dr. Yücel Acer is an Assistant Professor of International Law at the Department of International Relations, Onsekiz Mart University, Çanakkale. 1

2 The Aegean Sea as a whole covers an area of around 196,000 km 2 including the surfaces of all islands, islets and rocks except for the island of Crete, 2 and has narrow passages to its surrounding seas, namely the Black Sea and the Mediterranean. The Aegean Sea is connected to the Black Sea, which is again an enclosed sea, through the Turkish Straits namely the straits of Çanakkale and İstanbul and to the Eastern Mediterranean through the Karpathos and Kasos straits. It is also connected to the Western Mediterranean through the Kithira and Antikithira straits. Turkey and Greece are the only two countries whose coasts are washed by the Aegean waters and thus have respective vital economic, social, political and security interests in the Aegean Sea. For that reason they have to somehow harmonise their rights and interests in the Aegean Sea and have to live together in good neighbourhood. 3 Despite such a concrete reality, they have numerous undeniable disputes concerning their respective sovereign rights over the use of the Aegean Sea in many respects such as the maritime areas, aerial spaces, and certain islands, islets and rocks of the Aegean Sea. These are, in addition to the Cyprus case, is the status and the minority rights of Western Thrace Turks. The Aegean disputes between the two countries can be enumerated as follows: -The demilitarised status of the Eastern Aegean Islands; -The extent and the delimitation of the territorial sea areas, and the delimitation of the continental shelf; -Sovereignty over certain islands, islets and rocks; -The extent of Greek air space; -Air traffic services; -Command and control within NATO. 2

3 For many decades, especially since 1974, the Aegean disputes have been one of the most controversial aspects of the relations between Greece and Turkey. These disputes and the effect they play on the relations between these two states have however never been static. They sometimes increased the tension and sometimes went almost forgotten by the two sides, depending on the situation in both international relations in general and the relations between the two countries in particular. Recently, the earthquakes in Turkey and in Greece in 1999 and Turkey s admittance to the European Union (EU) as a candidate state by the Helsinki European Council in 1999 created a positive atmosphere for the settlement of the differences between the parties through amicable means. The present study aims at evaluating, in their present situation, the Aegean disputes by reflecting particularly the Turkish views of the issues in an objective manner without a particular effort to judge who is right and who is wrong. The review excludes the disputes over the air traffic service (ATS) and the related ones to that and also over the military conducts within NATO, due to both space limitations and the need to focus on the other issues that draw the attention of the public. I- Sovereignty Disputes A. Disputed Sovereignty over Some Aegean Islands Greece was established as an independent State from the Ottoman Empire in The situation at that time was as such that the western Aegean islands, namely the Northern Sporades, the Cyclades and the island of Crete were under the Greek control. However, the eastern Aegean islands, namely the Straits Region Islands, [Samothrace, Gökçeada (Imbros), Bozcaada (Tenedos) Lemnos, Tavşan (Rabbit) Islands], the Saruhan Islands [Mytilene, Chios, Samos and Nikaria] and the Menteşe Islands [Stampalia (Astropalia), Rhodes (Rhodos), Calki 3

4 (Charki), Scarpanto, Casos (Casso), Piscopis (Tilos), Misiros (Nisyros), Calimnos (Kalymnos), Leros, Patmos, Lipsos (Lipso), Simi (Symi) and Cos (Kos)] remained under the Ottoman sovereignty until the end of World War I. During the Tripolitania-Benghazi War that took place between Italy and the Ottoman Empire in , Italy occupied all the Menteşe Islands. The two States concluded after the War a treaty, named as the 1912 Treaty of Ushi, according to Article 2 of which Italy had to return these islands to the Ottoman Empire. 4 It seems however that the Ottomans did not really press on Italy for the return of the islands as the Ottoman Empire went into another trauma, namely the Balkan Wars. These islands remained under Italy s occupation, and continued to remain as such after the Balkan wars as late as the signing of the Lausanne Peace Treaty in During the Balkan Wars of , the Strait Region Islands and the Saruhan Islands were occupied by Greece excluding the Koyun (Ionussio) Islands, Antiipsara (Antipsara), and Hurşit (Fourni) while the Menteşe Islands still remained under the Italian occupation. 5 As a result of the Wars, the Ottomans were forced to conclude an agreement with Bulgaria, Greece and Serbia in London on 30 May 1913, 6 with which the Ottomans not only ceded the sovereignty of Crete to Greece by Article 4, but also conferred by Article 5 the power to the Great Powers, namely Austria-Hungary, France, Germany, Great Britain, Italy and Russia, to determine the sovereignty over the Aegean islands occupied by Greece during the War. Following the London Agreement, the Ottomans also concluded separate agreements with the other belligerent powers. Among them, the Athens Agreement with Greece, signed on 14 November 1913, 7 explicitly confirmed once more the Article 5 of the London Agreement in its Article 15. 4

5 The States named in the London Agreement came together in February 1914 at a conference, which is called the London Ambassadors Summit. They eventually determined the fate of the Aegean islands, which were under the Greek occupation. The decisions taken at the Summit were communicated to Greece on 13 February 1914 and to the Ottomans in the following day. 8 According to the decisions, the islands of Gökçeada, Bozcaada, and Castellorizo would remain under the sovereignty of the Ottomans, and all the other Aegean islands under the occupation of Greece would be ceded to Greece After the World War I, the Lausanne Peace Treaty 9 regulated the sovereignty issue over the Aegean islands and explicitly ceded sovereignty over the islands of Lemnos, Samothrace, Mytilene, Chios, Samos and Nikaria to Greece, while the islands of Gökçeada, Bozacaada, and Tavşan Islands were left under the Turkish sovereignty. Moreover, the Lausanne Peace Treaty attributed officially the sovereignty over the Menteşe islands and the adjacent islets to Italy in its Article 15. The Agreement in Article 15 left even the island of Meis (Castellerizo) to Italy, which is in fact situated outside the Aegean Sea. The sovereignty over the Aegean islands, this time concerning the Menteşe Islands, took another turn after the World War II. During the War, all the Aegean islands came under the German occupation in Later during the War, the Allies captured the Aegean islands. After the War, the 1947 Paris Peace Treaty returned all the islands that were under the Greek sovereignty before the War to Greece. 11 More significantly, the Menteşe islands that were under the Italian sovereignty before the War, were ceded to Greece. 12 As a result of all these events and regulations, Greece now has sovereignty over almost all the Aegean islands including the Eastern Aegean Islands namely the Strait Region Islands (except for the islands of Bozcaada, Gökçeada, and Tavşan Islands), the Saruhan islands and the Menteşe islands, some of which are situated 5

6 just a few miles off the Turkish mainland. On the other hand, Turkey possesses only a few sizable islands, namely the islands of Gökçeada, Bozcaada and Tavşan Islands which are situated in the mouth of the Çanakkale Strait. Other Turkish islands are relatively very small in size and situated in principle within the distance of 3 n.m. from the Turkish coast. It seems however that the above regulations have not yet fully settled, beyond any doubt, the sovereignty issue in the Aegean Sea. Turkey and Greece now disagree on the interpretation of some provisions of the above-mentioned international treaties. The major disagreement arises over the interpretation of some of the articles of the Lausanne Peace Treaty, namely Articles 6/2, 12/2 and 16, which regulate the sovereignty over certain islands in the Aegean Sea. Article 12 of the Agreement provides that the Strait Region Islands and the Saruhan Islands, except for the islands of Gökçeada, Bozcaada and Tavşan Islands and those that were put under Italy s sovereignty by Article 15 of the Lausanne Peace Treaty, would belong to Greece. Article 12, paragraph 3 provides moreover that Except where a provision to the contrary is contained in the present Treaty, the islands situated at less than three miles from the Asiatic coast remain under Turkish sovereignty. Article 12 of the Lausanne Peace Treaty is interpreted by Greece to mean that all the islands beyond 3 miles distance were to be left to Greece. According to the argument, the Article is quite clear that all the Aegean islands, except for Bozcaada, Gökçeada and Tavşan Islands and those within the distance of 3 miles to Turkish mainland were left to Greece. 13 The same article is however interpreted by Turkey quite differently. Turkey accepts that the Agreement and other related documents clearly leave the islands of Gökçeada, Bozcaada, and Tavşan Islands and those within 3 miles distance 6

7 from the Turkish mainland to Turkey. However, it refuses the Greek interpretation that all the islands beyond 3 miles, except Gökçeada, Bozcaada and Tavşan Islands were left to Greece. According to Turkey, only those that are beyond 3 miles and are also clearly named by the Agreement and the related documents as Greek islands are deemed to be left to Greece. All the others that are beyond 3 miles distance but not mentioned in their names should be regarded as inherited by Turkey as the successor of the Ottoman Empire which had previously possessed all the Aegean islands. 14 Turkey argues that, even if it is not the case, sovereignty over the islands beyond 3 miles and were not explicitly left to Greece should be determined by Greece and Turkey together. 15 The number of such islands, islets and rocks is said to be around On the other hand, it seems that the two States are also in disagreement over interpreting some other international agreements related to the Aegean islands. This has clearly emerged when a Turkish registered ship run aground on 25 December 1995 on rocks named as Kardak (Imia) rocks. The crew of the ship refused to receive help from the Greek rescuers on the basis that these rocks belonged to Turkey. 17 Turkey backed this stance by giving a note verbale to Greece, which provided that the Kardak rocks were part of the Turkish territory, and recorded as such in the property lists of the Turkish administrative province of Muğla. 18 Greece on the other hand argued that these rocks had been and were under the Greek sovereignty. This dispute caused a high tension and almost led to a conflict between the two countries. 19 Kardak rocks are situated off the shores of Bodrum on the Anatolian coast. The Eastern Kardak, which has an area of m, 2 is situated 3.6 miles off and the Western Kardak, which has an area of m, 2 is situated 3.9 miles off the Turkish shores. They are about 5.5 miles off the nearest Greek major island of Kalymnos but just 2.2 miles off a Turkish island, namely the island of Çavuş. 20 7

8 The Lausanne Peace Treaty confirms the Italian sovereignty over the Menteşe islands, specifically by their names, but it does not mention in name all the islands in the region and especially those that are relatively small islands, islets and rocks. Italy and Turkey signed an agreement on 4 January to settle the sovereignty issues over the small islands, islets and rocks around the island of Castellorizo that were not addressed in names by the Lausanne Peace Treaty in the relevant Article 15. This agreement between Turkey and Italy determined the sovereignty over the islands and islets adjacent to the island of Castellorizo by enumerating the islands and islets by their names. The experts of Turkey and Italy later agreed on a document on 28 December This document mentioned the Kardak rocks as in the west of the delimitation line and thus belonging to Italy. 23 Turkey argues that Greece accepted as early as 1952 that there was vagueness over the validity of the referred document of 28 December According to Turkey, the document of 28 December 1932 did not legally acquire the status of a binding agreement for both Turkey and Italy, since it was neither discussed nor ratified by the Turkish General National Assembly, which is a procedural and an essential requirement for an international instrument to bind Turkey, according to Article 26 of its Constitution of Therefore, there is no legally binding document to which Greece could be a successor. 26 Moreover, Turkey also points out to a fact that this document was not registered by the League of Nations as an international agreement, and thus lacked the essential requirement of Article 18 of the Covenant of the League of Nation. According to the Article, a treaty can only be binding if registered with the Secretariat of the League. The jurisprudence of the PCIJ and the ICJ dealing with the disputes over the validity of the treaties concluded during the League of Nations' era shows that such unregistered documents are considered as null. 27 8

9 Greece, on the other hand, repeatedly expressed during the crises over the Kardak rocks, that the agreements signed between Italy and Turkey on 4 January and 28 December were both succeeded to by Greece and are in force thus binding on Turkey. 28 Greek officials emphasize the link between the two documents signed by Turkey and Italy in 1932 and argue that, since the first agreement, which was signed on 4 January 1932, was ratified and validated by the Turkish Parliament, it was not necessary to ratify the latter document which is only a supplementary to the former. 29 Therefore, Greece concludes that the Kardak rocks were left by this agreement to Greece, as the successor state. However, it is a matter of fact that no reference was made by Italy to this supplementary document during the exchange of notes between Turkey and Italy on 25 April 1933 to put the 4 January 1932 Agreement into force on 10 May The second legal basis of the Greek contention related to the dispute is that since the Lausanne Peace Treaty left Turkey only the islands that are within 3-mile limit, Kardak rocks belong to Greece simply because they are 3.5 miles off the Turkish coast. 30 In the final account, sovereignty over some islands in the Aegean Sea is no doubt a disputed issue. Settlement of the sovereignty problem over islands, islets and rocks not explicitly addressed by the Lausanne Peace Treaty in Article 15 is a necessary step that should be taken not only to ease the tension between the two sides but also to settle the Aegean maritime disputes. A just and an equitable boundary delimitation cannot be established if the sovereignty over all the Aegean islands, islets and rocks remains unsettled. B. Demilitarised Status of the Eastern Aegean Islands As far as the demilitarized status of the Eastern Aegean Islands is concerned, they could be classified, according to both their geographical location and the 9

10 international documents determining their demilitarized status, within three separate groups as follows: -The Strait Region Islands; -The Saruhan Islands; -The Menteşe (Dodecanese) Islands 1. The Demilitarised Status as provided by the Related Documents a. The Strait Region Islands As we have already noted that as a result of the Balkan Wars, the Ottomans were forced to conclude an agreement with Bulgaria, Greece and Serbia in London on 30 May 1913, with which the Ottomans not only ceded the sovereignty of Crete to Greece in Article 4, but also conferred the power in Article 5 to the Great Powers to determine the sovereignty over the Aegean islands occupied by Greece during the Wars. Accordingly the Great Powers came together at the London Ambassadors Summit of 1914 and decided that the islands of Gökçeada, Bozcaada, and Meis (Castellorizo) would remain under the sovereignty of the Ottomans, and all the other Aegean islands under the occupation of Greece would be ceded to Greece. What is also significant about the decisions taken at the London Summit is that the Great Powers also decided that the islands ceded to Greece would not be fortified and not be used for military purposes, except for the purpose of combating against smuggling. According to the decisions, the necessary guarantee would be sought from Greece and be given to the allied countries and the Ottomans in this regard. It was decided at the same time that the Allied Powers would pressure on Greece for the full and effective implementation of these provisions

11 Greece accepted the stated note verbale, but the Ottoman rejected the decisions on ground that they were not just and fair. The Ottomans also claimed that ceding the islands to Greece threatens the security of Anatolia and of the Çanakkale Strait. They noted that the attention of the Allied Powers had in fact been previously drawn to this particular fact. 32 When the World War I broke out, this issue was still an unsettled matter from the Ottomans point of view. As we have noted above concerning the status of the Aegean islands, they were once more discussed during the Lausanne Peace Conference, and settled finally by the Lausanne Peace Treaty in its articles 12 and 13 and in an annexed document, named as the Convention Relating to the Regime of the Straits, in its Articles 4 and Article 12 of the Lausanne Peace Treaty deals with the sovereignty issue in explicit terms and with the demilitarized status of the Strait Region Islands in implicit terms by approving the the decision taken on the 13 th February, 1914, by the Conference of London, and Article 15 of the Treaty of Athens of the 1 st -14 th November, The Lausanne Straits Convention in its Articles 4 and 6 explicitly regulates the demilitarized status of those islands. Article 4 provided for the demilitarization of certain areas around the Çanakkale Strait, the Strait of İstanbul, the Sea of Marmara, all the islands in the Sea of Marmara, with the exception of the island of Emir Ali and, in the Aegean Sea, the islands of Samothrace, Lemnos, Imbros, Tenedos and Rabbit Islands. Article 6 clarifies the term demilitarised status by explaining in details what sort of military units should not be present in such islands and areas. b. The Saruhan Islands The Saruhan Islands include, as already noted the islands of Mytilene, Chios, 11

12 Samos and Nikaria. These islands were occupied by Greece during the Balkan War I. As noted in the preceding section, they were later ceded to Greece by the decisions taken at the London Ambassadors Summit in February Turkey approved these decisions in the Lausanne Peace Treaty. The Lausanne Peace Treaty moreover put these islands under a demilitarised status in Articles 12 and 13 in order to specifically safeguard the security interests of Turkey and to ensure the maintenance of peace in the region. Article 13 clearly provides for a demilitarised status of the islands of Mytilene, Chios, Samos and Nikaria. 34 The nature and extent of the demilitarised status are also clarified in Articles 12 and 13 of the Lausanne Peace Treaty to presumably avoid any misinterpretations and to call the third States to respect this status. c. The Menteşe Islands As it has been explained in the preceding section, the status of the Menteşe Islands have been settled finally at the Paris Peace Conference held in 1947 after the World War II. Before the Conference, the United States proposed at the Council of Foreign Ministers meeting in London on 14 September 1945 the demilitarization of the Menteşe Islands to which none of the other participating States opposed. 35 During the Conference, the United States proposed on 29 April 1946 that the islands should be demilitarized in a manner as provided for by the Lausanne Peace Treaty. 36 The United States drafted an annex to the Treaty that concerned the definition and scope of the terms demilitarization and demilitarized. 37 All these efforts, according to the minutes, aim to prevent a military threat to Turkey and safeguard the security of Turkey. Accordingly, the Treaty explicitly provided in its Article 14 for the demilitarization of these islands when it ceded them to Greece. The condition 12

13 emphasized in this article to be and to remain demilitarized aims solely to protect the security interests of Turkey by creating a demilitarized zone along its coasts in the southern Aegean Sea, as apparent from the minutes of the Peace Conference. 2. The Nature of the Dispute over the Demilitarized Status of the Eastern Aegean Islands The demilitarized status of the Eastern Aegean Islands was not contested between Turkey and Greece until April 1968, simply because Greece respected to the above mentioned international regulations. However, the Turkish Government felt necessary to draw the attention of the Greek Government to the demilitarized status of those islands including the Saruhan and Menteşe groups during the bilateral talks between the two countries held respectively in Athens in April 1968 and in Vienna in May A year later, the Turkish Government submitted a note verbale to the Greek Government on 2 April 1969, calling for respect to the demilitarized status of all the Eastern Aegean Islands. The Greek Government in its counter note verbale, dated 10 May 1969, informed that its government was acting in conformity with its international commitments and respecting the demilitarized status of the islands concerned. 38 Despite the Greek denial of militarizing these islands in these early years, Turkey seemed to have had some proofs showing the Greek militarisation of some eastern Aegean islands and continued to make protests over such acts. In later years however, especially since 1974, Greece admits militarizing the said islands and claims to be justified by some political-legal reasons. Therefore, Greece and Turkey eventually have a dispute over the demilitarized status of the Eastern Aegean Islands. 13

14 Greece argues firstly that the Montreux Straits Convention which was established in 1936 to change and re-regulate the regime of passage through the Turkish Straits which had previously been regulated by the Lausanne Straits Convention, changed also the demilitarized status of the Aegean islands together with the demilitarized status of the Turkish Straits. This is to say that the Montreux Straits Convention totally replaced altogether the Lausanne Straits Convention, which had provided for the demilitarization of the Strait Region Islands. Another Greek argument as to the militarisation of the Eastern Aegean Islands is that Greece is legally entitled to militarize these islands to prepare itself for its right to self defense according to Article 51 of the UN Charter against the ever increasing Turkish threat to occupy the Eastern Aegean Islands of Greece. Greece particularly points to the establishment of the Fourth Army at the Aegean region by Turkey as an indication of Turkey s intention to occupy the Eastern Aegean Islands. As to the 1947 Paris Peace Treaty, Greece argues that Turkey has no right to claim the demilitarization of the Menteşe Islands simply because it is not a party to the 1947 Paris Peace Agreement. Turkey, on the other hand argues that although the regime of the Turkish Straits have been changed by the Montreux Straits Convention, Articles 4 and 6 of the Lausanne Straits Convention which provide for the demilitarization of the Strait Region Islands remain unchanged and are still in force. Turkey points out that since the Montreux Straits Convention only relates to the regime of passage through the Turkish Straits, the provisions of the Lausanne Straits Convention which are related to the demilitarization of the islands are still in force. Thus, even Turkey can remilitarize only the Marmara Sea and the shores of the Straits, but not the islands in the mouth of the Çanakkale Strait, according to the provisions of the Protocol annexed to the Montreux Straits Convention, which constitutes an 14

15 integral part of the Convention and was signed by all the party States including Greece. Turkey states specifically that the reference made in the Protocol is only to the zone of the Straits as defined in the Preamble of the Montreux Convention, which covers the Sea of Marmara, the Straits of Istanbul (Bosphorus) and the Çanakkale Strait (Dardanelles), and explicitly excludes the Strait Region Islands. Turkey states moreover that since the Montreux Straits Convention was concluded to safeguard Turkey s security interests, as mentioned in the Preamble of the Convention, it should be obvious that the islands at that region are excluded from remilitarization. On the other hand, the preparatory work of the Montreux Convention does not contradict the above stated views of Turkey. 39 Turkey moreover argues that the Fourth Army that is established at the Aegean region in the late 1970s is for only training purposes, which is not equipped to launce an attack any other country. Turkey emphasizes that it does not in any account have an intention to attack any country including Greece. Turkey concludes that for the above reasons, Turkey should have a right to demand that the said islands remain as demilitarized, as these islands have been put under the demilitarized status by the still truly valid international documents which are creating an objective and an erga omnes status. It is clear that certain international regulations, namely the decisions taken at the London Ambassadors Summit in February 1914, the Lausanne Peace Treaty, the Lausanne Straits Convention and the 1947 Paris Peace Treaty have established a demilitarized status of the eastern Aegean islands, which should be regarded as a situation erga omnes and could only be changed by the consent of all the participating States, according to the well-established principles of international law. Moreover, it is not significant in this respect whether Turkey is a party to the 15

16 1947 Paris Peace Treaty to argue that the Menteşe islands are still under a demilitarized status. It just seems that the overall aim of especially the Lausanne Peace Treaty was to create a delicate balance between the vital interests of Turkey and Greece to provide eventually justice and ensure a durable peace in the region simply because the provisions were designed to prevent one side from undertaking acts to create a situation to the disadvantage of the vital interests of the other side. 40 This fact is also evidenced by the fact that none of the parties including Greece expressed a desire or intention to amend the Lausanne Peace Treaty. The Agreement recognized Italian sovereignty over the Menteşe Islands but did not provide for a demilitarized status to them. This further evidences that the States which participated in the Lausanne Peace Conference and in the end signed the Lausanne Peace Treaty had an obvious intention of creating a delicate balance between especially Turkey and Greece in the Aegean. Greece however now continues openly to militarize the Eastern Aegean islands so that the dispute between Greece and Turkey concerning the demilitarized status of the Eastern Aegean Islands continues. Greece accepted on 20 December 1993 the compulsory jurisdiction of the ICJ according to Article 36/2 of the Statute of the Court as a result of the Western European Union (WEU) Agreement Article X. 41 But, it put a reservation according to which it excludes any dispute relating to defensive military action taken by its Government for reasons of national defense from the competence of the ICJ 42. Thus, by this reservation, the dispute concerning the demilitarized status of the Eastern Aegean Islands this time became arguable also from an other point too, that is whether this case falls outside the jurisdiction of the ICJ or not. 16

17 II- Delimitation Disputes in the Aegean Sea A. The Territorial Sea Dispute 1. The Turkish and Greek Internal Regulations as to the Territorial Sea Limits and the Baselines Inspired mostly from both the negotiations at the Lausanne Peace Conference and some resulting provisions, namely Articles 6/2 and 12/2 of the Lausanne Peace Treaty 43 which, as should be clear so far, regulates inter alia the status of the Aegean Sea in many respects, Turkey applied a territorial sea of 3 nautical miles (n.m.) until 1964 in the Aegean Sea. This was despite the fact that the Agreement did not in fact explicitly regulate the extent of the territorial sea in its internal law. 44 Turkey did not clearly regulate the breadth of its territorial sea until as late as In that year, the Territorial Waters Law No. 476 was enacted to clarify the situation, 45 which introduced a general principle that the extent of the Turkish territorial sea was 6 n.m.. Article 2, however, introduced an exception by providing that wider limits could be declared on the basis of reciprocity as against the States claiming wider territorial sea limit. In accordance with that law, the limits of the Turkish territorial waters in the Black Sea and in the Mediterranean were fixed at 12 n.m. on the basis of reciprocity. The limits in the Aegean Sea were declared to be 6 n.m. due to the said principle of the territorial waters law. 46 In measuring the breath of the territorial sea, Turkey reserved in Article 4 of the 1964 Law the right to apply either the normal or the straight baseline system, where there existed the circumstances approved by international law. Moreover, Article 5 of the Law also referred to the closing lines for gulfs with entrances not extending 24 n.m. Turkey applied until July 1973 the straight baselines system in certain bays. 17

18 Straight lines have closed about six juridical bays. 47 However Turkey, in July 1973 abolished the straight baseline system in these areas in order to prevent any similar practice and any abuse by Greece in the Aegean Sea. 48 Turkey deemed the principle of reciprocity in determining the breadth of the territorial waters to be inappropriate in the sense that it could give the initiative to other States in the future for any extension of the territorial sea limit. 49 In order to change the situation, a new law enacted to replace the Law No. 476 in This new law, the Territorial Sea Law No. 2674, 50 provides that the breath of the territorial sea is 6 n.m. The law, however, authorized the Council of Ministers to accept limits other than 6 n.m. for certain seas according to the equitable principles by taking into account of all the relevant circumstances and conditions of the seas concerned. 51 On the basis of the authorization, the Council of Ministers, by taking into account of the circumstances of the seas surrounding Turkey and equitable principles, approved the pre-existing limit of 12 n.m. in the Black Sea and the Mediterranean. 52 It seems that the Aegean Sea is wholly excluded from any extension beyond 6 n.m., given the fact that the special circumstances of the coast and sea do not justify on the basis of the principle of equity any extension of the territorial waters beyond the present 6 n.m. in the Aegean Sea. 53 On the other hand, Article 3 of the Law provides that baselines from which the breadth of the territorial sea is to be measured would be determined by the Council of Ministers. Shortly after, the Council of Ministers declared that taking into account the peculiar characteristics of the seas which surround Turkey and of the principle of equity, [it] has decided that the situation obtained before the proclamation of this law will be continued. 54 It seems at present that Turkey applies normal baselines system since 1973, 55 as the map attached to the decree issued by the Council of Minister in 1987 by which exploration licenses were 18

19 granted to the Türkiye Petrolleri Anonim Ortaklığı (TPOA), did not seem to have adopt the system of straight baselines. 56 While Turkey was applying 3 n.m. territorial sea in the Aegean and in its surrounding seas, Greece, by Law 230 of September 1936 settled the issue in a quite specific way. Article 1 of Law No. 230 provided that The extent of the territorial sea is fixed at six nautical miles from the coast, without prejudice to provisions in force concerning special matters, with respect to which the territorial zone shall be delimited at a distance either larger or smaller than six miles. 57 Law 230 moreover provided that the territorial sea of Greece was measured from the coast. Greece thus adopted what is called the system of normal or low water baseline, 58 which is more favourable to wider high sea areas free to all international navigation. The fact that Greece had interests in preservation of free international navigation was an element that seemed to have played the major role in its preference on different baseline systems. The Law 230 thus puts a general limit to the Greek territorial sea as 6 n.m. However, it did not repeal the pre-existing limits that were put in place for special purposes. What is significant about these regulations is that the Presidential Decree of 1931 had already put in place a 10 n.m. limit pursuant to Law 5017 of June 13, 1931, for the purposes of aviation and air police. It was a wider limit than 6 miles. Accordingly, Greece at present observes a 6 n.m. territorial sea but still keeps its national airspace at a distance of 10 n.m. in the Aegean Sea. 59 On the other hand, the system of normal baseline was again confirmed for the Greek coasts when Greece became a party in 1972 to the Geneva Convention on the Continental Shelf. Greece then made a reservation according to which it would, in the absence of international agreement, apply the normal baseline for the measurement of the territorial sea to delimit shelf boundaries. 60 Since then, 19

20 there has been no deviation in the Greek choice from the normal baseline system The Disputed Aspects of the Territorial Waters a. Dispute over the Proposed Extension of the Greek Territorial Waters Although the territorial sea limit seems to have settled at 6 n.m. in the Aegean Sea for both sides, it does not however mean that the issue of the territorial waters has been settled beyond any doubt. Greece is considering making further changes to the present extent of its territorial sea in the Aegean Sea. It emerges that Greece intends to extent its territorial waters from 6 to 12 n.m. in the Aegean Sea. However, this is something that Turkey rigorously argues to be illegal and unacceptable, and also as a sine quo non clause for the settlement of all the Aegean disputes. The extent of the territorial waters in the Aegean Sea was a matter of controversy as early as The extension of the territorial sea from 3 to 6 n.m. by Greece attracted objections from the major maritime nations of that time, which were understandably in favor of narrow territorial seas like 3 n.m. in extent. 62 Although Turkey would also inevitably suffer from the shrinking sea areas available for free navigation and for its other activities in the Aegean Sea, it did not raise any objection to the Greek 6 n.m. claim probably due to the good relations that existed during that period between the two countries. 63 The initial dispute between Greece and Turkey as to the territorial sea extent in the Aegean emerged in 1964 when Turkey decided to extend its territorial sea to 6 n.m. by Law No Although it had already claimed the same limit in the Aegean, Greece objected to this Turkish move on the basis that 6 n.m. Turkish territorial waters would interfere with Greece's fishing rights in the Aegean Sea

21 As already noted, Greece at the 1958 UN Conference on the Law of the Sea emphasized that any extension of the territorial waters in the Aegean Sea would be inequitable as an act that would harm the rights of other States using the Aegean Sea for navigational purposes. 65 However, the actual territorial sea dispute between the two countries was initiated later in the early years of 1970s, when Greece started to express its choice in favor of 12 miles limit for the territorial waters. The 1960 UN Conference on the Law of the Sea constituted an arena for Greece to raise its arguments. It became clear throughout the Conference that the objectives of the two countries as to prospective conventional rule on the breadth of the territorial sea differed fundamentally as a result of their preferences over the mutual territorial sea limits in the Aegean Sea. Generally speaking, Greece favored a general and uniform limit of 12 n.m. This is to mean that any coastal State could declare a territorial sea of 12 n.m. in any area without any specific condition. As the Aegean Sea would not be an exception, Greece would be able to declare 12 n.m. territorial sea in the Aegean Sea. Turkey on the other hand sought a rule that would put a maximum limit of 12 n.m. but prevent the declaration of a limit within this distance which would be inequitable within the special circumstances of the area concerned such as enclosed or semi-enclosed seas. This is to say that coastal States should not be able to declare 12 n.m. territorial waters in areas where such a limit would be inequitable on the basis of the peculiar circumstances of the area. Thus, the prospective conventional rule would not allow any wider limit than 6 n.m. in the Aegean Sea on the basis that they would cause inequity considering the circumstances that exist in the Aegean Sea. UNCLOS eventually accepted that Every State has the right to establish the 21

22 breadth of its territorial sea up to a limit not exceeding 12 nautical miles. An initial impression is that the rule puts a maximum limit of 12 n.m. but does not oblige States to declare a limit of 12 n.m. as apparent from the expression up to. The rule however does not contain any explicit condition that in areas with special circumstances such as enclosed and semi-enclosed seas, States should keep their territorial waters at the appropriate or equitable level. However, when the Convention is considered as a whole especially with Article 300 which prevents the use of rights in a manner to be regarded as abusive or inequitable, it could be said that the Convention still pays regard to areas like the Aegean Sea, which have peculiar circumstances. Indeed, the ICJ in its judgement in the Anglo-Norwegian Fisheries Case and also in the Anglo-Icelandic Fisheries Case emphasized the necessity to take into account the geographical location of the sea and the interests of the third states in determining the extent of the territorial waters. 66 It is a matter of fact that if Greece extends its territorial waters to 12 n.m., it would put the Greek territorial waters at about percent of whole the Aegean Sea and reduces the Aegean high seas to percent from the actual percent. In such a case Turkey, which actually has around 7.47 percent under the 6 miles limit would only have 8.76 percent of the water areas. 67 Surely that would effect considerably the interests of Turkey in the Aegean Sea in terms of security, navigational and all other related matters. It is also a matter of fact that the Greek territorial waters would cut the connection of the Turkish territorial waters to both the other parts of the Turkish territorial waters and the Aegean high seas, if the Greek territorial waters were extended to 12 n.m. 68 Moreover, the continental shelf areas in the Aegean Sea, which are now yet to be delimited between the two States will be reduced significantly as a result. It is due to such facts that Turkey just after the UNCLOS was concluded declared that it would be a reason for a war (casus belli) if Greece extended its territorial 22

23 waters beyond the 6 miles limit. As the UNCLOS came into force on 14 November 1994, the Aegean territorial sea dispute has entered into a new stage. 69 Greece has not yet extended its territorial waters to 12 n.m. It does not however mean that Greece has abandoned its intention altogether. As Greece reiterated its already known position that it had the right to extend its territorial sea to 12 n.m. in the Aegean, Turkey continued to make strong statements to show its objection and to prevent any actual extension. 70 Beyond mere statements, the Greek Parliament ratified the Convention on 1 June 1995, and permitted the Government to implement it at its discretion. 71 Following the Parliament's ratification, statements made by the Greek Government reiterated that Greece would extend its territorial waters to 12 n.m. when Greece deemed it expedient and nationally beneficial. 72 Therefore, there is still no indication at all that Greece has abandoned its intention to declare 12 n.m. territorial sea in the Aegean Sea. 73 It seems that Greece bases its stance on an argument that a uniform and absolute right to 12 n.m. territorial waters is now both a conventional and customary rule for all the coastal States. In this sense, no area including the Aegean Sea could be an exception. Therefore, Greece is now legally entitled to extend its territorial waters to 12 n.m. in the Aegean Sea. 74 Moreover Greece argues that the right to set the limit of the territorial sea is a sovereign right vested with coastal State. Thus Greece does not even have to discuss this matter with Turkey. 75 Turkey emphasizes that the extension of the territorial sea in the Aegean Sea would never be acceptable to Turkey. 76 The Turkish Grand National Assembly (TGNA) on 8 July 1995 discussed the situation arising from Greece s ratification of the UNCLOS and its possible implementation by the Greek Government and gave the Government to take all the necessary measures including those in the military field for safeguarding and defending the vital interests of Turkey and 23

24 decided to announce this to the Greek and world public opinion in a spirit of friendship. 77 Turkey seems to base its stance on certain legal principles. Firstly, Turkey accepts that the declaration of territorial sea is a unilateral action. However, it dismisses the claim that right to a 12 n.m. territorial sea is an inalienable and non-negotiable right. Turkey rather argues that the validity of the limit declared unilaterally must still depend on the relevant rules of international law and jurisprudence. Secondly, Turkey points out that a uniform and absolute 12 n.m. rule has not become a customary rule. 78 It is clear that, according to Turkey, if a certain limit would cause inequity or could be considered as abusive on the basis of the respective rights and interests of the States concerned, the declaration of such a limit would be contrary to international law. 79 Turkey emphasizes that such a situation would clearly exist to the disadvantage of Turkey in the Aegean Sea if Greece extends its territorial waters beyond the present limit of 6 n.m. Although there is not yet an actual extension in the Aegean Sea by Greece, its intention to do so, as has been seen, causes enormous tension between the two States.On the other hand, assuming that the mouth of the Çanakkale Strait is also closed by straight lines that pass on the foremost points of the Turkish islands of Gökçeada, Bozcaada, and Tavşan Islands in the mouth of the strait, Greece would dispute this system of baselines as contrary to international law. 80 It therefore seems that the two States need to settle these matters to get rid of a major source of tension. b. The Dispute over the Territorial Sea Delimitation The territorial sea dispute in the Aegean Sea has another but a less-known aspect by the public. At present, where the distance between the Turkish mainland and 24

25 the Greek islands close to Turkish coasts is less than the total of Greek and Turkish territorial waters, i.e. 12 n.m. a median line is applied between Greece and Turkey. But this is not considered as a maritime boundary. In the face of both history and the actual Turkish arguments, 81 there is a need to establish a line that is to separate the territorial waters of the two countries in the Aegean Sea. 82 There is no previous agreement between Greece and Turkey that would establish a territorial sea boundary in the Aegean Sea. The Lausanne Peace Treaty that regulates the rights and interests of the two countries to a great extent in the Aegean Sea did not however establish any territorial sea boundary. 83 In the years following the Lausanne Peace Treaty, the Official International Boundary Commission of which was established according to Article 5 of the Agreement to demarcate the land boundary between Turkey and Greece, established a line which seems to have delimited the territorial waters between the adjacent coasts of the two countries in the northern Aegean Sea from the point at the mouth of the river Maritza, where the land frontier between the two countries terminates. 84 As a matter of fact the Commission did not specifically intend to establish a line to separate the respective territorial waters of the two countries. It rather tried to establish a line to determine the Greek-Turkish land frontier but extended this line further seaward. 85 Even if it is perceived as delimiting the respective territorial waters in the area concerned, the line seems to be insufficient even for the this restricted area simply because the Commission established the line when the territorial sea limits of the both countries were 3 n.m. But as has been seen, the territorial waters of the two countries are now 6 n.m.. The only agreement that clearly established a delimitation line is the agreement of 4 January This agreement was concluded between Turkey and Italy to determine, by means of interpreting Article 15 and especially 16 of the Lausanne Peace Treaty, the sovereignty over the islands lying between the island of 25

26 Castellorizo, located at the Mediterranean, and the Anotolian coast. This agreement moreover settled the sovereignty dispute over the island of Karaada, located in the Aegean and off the coast of the Turkish province of Bodrum. This agreement, while determining these sovereignty matters also delimited the territorial sea between the coast of Anatolia and the island of Castellorizo together with its adjacent islets by Article 5. The Agreement of 4 January 1932 is still in force and continues to govern the limits of territorial waters between the island of Castellorizo and the adjacent islets on the one hand and the coasts of Turkey on the other. Accordingly, the sovereignty over this group, together with the rest of the Menteşe islands was ceded to Greece in accordance with Article 14 of the 1947 Paris Peace Treaty with Italy. Therefore the line drawn by the 4 January 1932 agreement is the delimitation line between Greece and Turkey in that specific region of the Mediterranean, in other word around the island of Castellorizo. Another significant point as to the delimitation line is that this line was further extended to northward by a document that was signed between Turkey and Italy on 28 December 1932, which as already examined above under the heading Disputed Sovereignty over some Aegean Islands. The document established a frontier line (la ligne frontierè) between the Menteşe islands and the Turkish coast and provided that up to distance of 12 n.m. between the territories of the contracting States, the line established would both separate sovereignty areas in the sea (déterminera la souveranité des deux Pays sur les eaux de la mer), and constitute a line which would divide the areas in which the islands would belong to the Party nearby. Beyond 12 n.m. distance, the line would only regulate the sovereignty over islands, islets and rocks in the area. However, the validity of the 28 December 1932 document is seriously doubtful and constitutes at present a dispute between Greece and Turkey, as explained in 26

27 details above as regards the disputed sovereignty over some Aegean islands. Despite the fact that the territorial sea delimitation in the Aegean Sea creates relatively very little tension between the two countries, it is apparent that there is no line delimiting the territorial seas of Greece and Turkey at the Aegean Sea. It should be noted here that Turkey seems to emphasize as regard to the delimitation of the territorial waters that it should be done by taking into account of all the relevant circumstances of the Aegean Sea in order to achieve an equitable delimitation. 87 Turkey s new law enacted in 1982 to replace Law 476 provides a principle in Article 2 for delimiting the respective territorial waters with other countries. Accordingly, delimitation will be done with an agreement, which ought to take into account all the relevant circumstances of the area in question in order to achieve in the final account an equitable solution. However, the above mentioned Greek Law 230 which regulates the extent of the Greek territorial waters does not provide any special provision on methods of delimitation, and the effects of islands and islets within such a delimitation process. B. The Dispute over the Extent of the Greece s National Air Space Greece since 1931 observes a 10 n.m. national airspace for aviation and for the purpose of air police, while it has 6 n.m. territorial sea in the Aegean Sea. Therefore it has a national airspace which is 4 n.m. wider than its territorial sea. The 10 n.m. Greek national airspace has attracted since 1975 and still attracts strong Turkish opposition. The basic reason why Turkey did not oppose to the 10 n.m. Greek airspace prior to 1975 is explained by the fact that it was not using the 6-10 n.m. area of the Greek air territory for military purposes and for that reason never faced any Greek opposition till than. This issue now causes tension and sometimes-even confrontation between the two 27